February 2010

February 26, 2010

Lawyers are a pugnacious breed. Cooperation is contrary to the nature of most lawyers. They prefer to be engaged in fisticuffs. They sling a lot of mud and curse like Marines. As an expert, I've sat in on phone conferences where the language was loud, obscene and defamatory - and I was profoundly glad that the parties were not in the same room because I feared that someone's blood would end up on the floor.

How many times have I witnessed professional, courteous cooperation in e-discovery? A handful of times, not more. It's only the degree of combativeness that has varied.

Many lawyers think that civility has deteriorated faster recently, but let's face it, civility in the legal profession has been on the decline for a long time, even in the paper world.

I recently enjoyed reading an article in the ABA Section of Litigation's Newsletter by Michael Berman. He cited a 1994 case where a lawyer remarked that opposing counsel "could gag a maggot off a meat wagon." Nice. He cites a number of other examples of unprofessional remarks which made me shake my head, though the maggot line was really a corker.

He goes on to discuss The Sedona Conference's Cooperation Proclamation, a document which most of us in the e-discovery world cherish for its common sense approach to EDD. As Michael says, we'll have to see how much of a difference this publication will make in the real world.

My own take is that the courts have embraced the Proclamation, many of them explicity endorsing the Proclamation and taking attorneys to the woodshed when they fail to cooperate. They need, of course, to build a much bigger woodshed.

Over time, I suspect that the draconian sanctions that courts are beginning to issue will have some impact, but I have to say that I haven't seen it yet. In a single case where the judge gets angry with the parties for the failure to cooperate, that anger may find its mark and result in more cooperation. But until the sanctions reach some kind of critical mass and attorneys as a whole are educated about the consequences of failing to cooperate and the benefits of true cooperation, I suspect (sadly) that it will business - and pugilism - as usual.

February 25, 2010

Hat tip to friend and colleague Carl Roberts who sent along the following e-mail from the U.S. District Court for the Western District of Pennsylvania.

"It has come to the attention of the Court that Metadata (AKA Hidden Data) within Microsoft Office Word is NOT being removed from some documents prior to their conversion to PDF format for uploading to the Court CM/ECF server. Please be advised that Hidden Data CAN be retrieved from PDF documents if the data is NOT cleaned from the Microsoft Word document prior to conversion. Below is a link to Microsoft support. From this link you can search for updates that will remove this information (Metadata).

Please be advised that the Court is providing this information as a public service and will NOT provide any technical support on this issue. If you are NOT aware of the procedure for removing Metadata, please contact your local Information Technology support team."

Carl says that his law firm has tested and confirmed the problem exists for some Word to PDF plug-ins, so be careful out there!

February 23, 2010

The title of this post is also the title of an excellent article in Wisconsin Lawyer by noted litigator Bruce Olson. Along with John and I, Bruce is the co-author of The Electronic Evidence Handbook: Forms, Checklists and Guidelines (ABA 2006) as well as the founder and President of Onlaw Trial Technologies LLC. In this article, he notes that “most lawyers do not know how to effectively present electronic evidence to a jury – they risk confusing the jury with jargon, damaging their expert’s credibility, or putting the jury to sleep during their expert’s key testimony.”

We’ve seen exactly that happen all too often. This article offers a number of valuable tips for presenting such evidence to a jury. Keep this one handy.

Another recent article by Bruce (you've been mighty busy buddy!) is called Collaborative Computer Forensics which appeared in DFI News. Bruce had suspected for some time that he was missing investigative opportunities by not working more closely with his computer forensics technologist. Sure enough, on the very first case where he sat in the technologist's cubicle (and yes, that was here at Sensei), he uncovered valuable evidence. This approach, as Bruce notes, might not work with large cases, but it can be very effective in the smaller cases that are more often encountered by most attorneys. Our experience is much the same - when attorneys work closely with us, we often uncover more useful ESI when the attorneys are there to witness the myriad trails of the evidence.

At the end of the article, Bruce notes that he enjoyed this process so much that he has given up the active practice of law and is now doing computer forensics himself. Hey Bruce, when we taught you all the tricks of the trade, we didn't know we were going to wind up with a competitor!

February 19, 2010

It's not often I say "Wow" when reading a security report. But it happened recently when I read a report from Mandiant, a well known computer security firm. The report (you have to register to download it) has an excellent overview of advanced persistent threats along with a number of case studies.

The case study that caught my eye involved a U.S. law firm which was representing a client/plantiff in a Chinese civil litigation case. A very substantial amount of the firm's data was compromised. Though certainly the thought was that the initial attack vector came from China, it could not be proven because of the absence of system logs from firewalls, intrusion detection systems and the like.

In this case, approximately three dozen workstations were compromised, alllowing the attacker to gain valid credentials, thereby permitting access to any server, workstation or laptop in the law firm's network.

Read the entire paper - it is nothing less than chilling. My own suspicioun is that vast amounts of data are being harvested by China from law firms who are oblivious to their vulnerability. It is interesting that the report opens by noting that the overwhelming majority of advanced persistent threats are linked to China.

We rarely see a law firm which has hardened its perimeter sufficiently. To the contrary, the failure of most law firms to install sophisticated intrusion detection systems and to enable appropriate logging is an engraved invitation to intruders saying "Where Would You Like to Go Today?" And the answer is "Everywhere."

February 16, 2010

Conspiracy theorists have long held that this famous photo of Lee Harvey Oswald, President Kennedy's assassin, was faked. If that were true, the implications would be profound. Not only did the photo show Oswald with two weapons, he is also holding Marxist documents.

Over the years, the conspiracy theorists have pointed to the lighting in this photo to back up their allegations that the photo was faked to cement the case against Oswald. If the police or anyone else had doctored this photograph, it almost certainly would have pointed to a broader conspiracy in JFK's assassination.

Indeed, the lighting is curious to the naked eye. The long shadow of Oswald's figure suggests that the sun was somewhat low in the sky and and coming at him from Oswald's left. Yet there is a shadow under his nose suggesting that the light was above him. There is another across his neck that indicates light coming from another direction.

Enter Dr. Hany Farid, a professor at Dartmouth and probably the country's leading expert on photo alteration/fabrication. He takes a look at the photo in a fascinating video. Dr. Farid himself was struck by what appeared to be inconsistent lighting.

It turns out that our brain doesn't process well what we see in the two dimensional world of a photo. Oswald was in a three dimensional world when the photo was taken and any serious analysis of the photo requires a three dimensional model. Using Oswald's mug shots, Dr. Farid constructed a 3D model of Oswald's head. He also constructed a 3D model of his body. The light was then positioned where it would necessarily have been to create the shadow.

Once that was done, the results were suprising. Not only did Oswald's large nose cast exactly the shadow in the photo, but the dark wells under his eyes and the darkness under his lower lip were also there. Even the shadows across his neck are identical. Conclusion: the shadows in the photo are consistent and the photgraph is genuine.

In 1963, it is almost inconceivable to imagine the technical sophistication that would have allowed this photo to be doctored. Even today, it would be difficult. This video really highlights the human inability to reason about 3D lighting and 3D geometry.

As Dr. Farid says, photo manipulation has a long history. One of the most exiting things about our new technical capabilities is that we can now go back and look at photos that were "suspect" and make a pretty accurate determination of which photos were doctored.

One of the most popular CLEs we teach is The Alteration and Fabrication of Electronic Evidence - we doff our cap to Dr. Farid, who has now given us another slide for our PowerPoint!

February 11, 2010

We were closely questioned by a paralegal about the CVs of our testifying experts and why they didn't show more trial trial testimony. We had to explain that, for every 100 open cases, only one is likely to go to trial - if that. Depositions and hearings - those happen commonly - but not trials. The civil cases generally settle somewhere along the way and the criminal cases usually result in a plea bargain.

Sometimes, the cost of litigation causes a party to settle - or not to file suit at all.

This phenomenon has particularly affected jury trials, which have steeply declined. In our state of Virginia, civil jury trials have dropped an astonishing 72% from 2,042 in 1999 to 570 last year according to Virginia Supreme Court statistics. This is a nationwide trend that legal experts call the "vanishing jury" and it is evident in both state and federal courts.

Most experts agree - the reason is the cost. Jury trials are far more expensive than judge trials - and they often are likened to a toss of the dice, without any guarantee other than that they will be very, very expensive. The civil case load overall remains steady, averaging a little more than 100,000 per year. It is clear that judge trials are becoming the preferred mode of trial.

This is quite a departure from times past. As one veteran attorney put it, "The old guys used to try dozens and dozens a year - jury trial work is becoming a lost art." Not to worry though, it makes good theater, so Hollywood will keep the magic of the jury trial alive.

February 08, 2010

Recently, I've been giving serious thought to purchasing e-mail lists of attorneys for marketing. I hate reinventing the wheel, so I thought I'd ask my colleagues what they do, Most of the readers of this blog are in EDD companies, computer forensics or law firms and all potentially use this form of marketing.

I've been doing some research which I'm happy to share with readers, along with any comments that I may receive via e-mail. Here are some of my questions:

Do you purchase e-mail lists?

If so, for one time use or repeated use?

Are there companies you especially like or dislike? Why?

Do you use a one-stop company, which also does the transmission for you?

If not, how do you transmit the e-mails? Yourself? Or by using a service?

If a service, are there companies you especially like or dislike? Why?

What opt-out mechanism do your e-mails use?

What kind of e-mails do you send? Webinar invitations? White paper announcements? Product release announcement? General marketing pieces? What else?

How successful has this marketing been for you? Do you have a way to measure your conversion rate?

I've probably left out some logical questions, so feel free to answer the questions that aren't here and should be. I realize that many readers will prefer to keep such information confidential, but I've always tried (as many of you know personally) to share marketing tips and other useful information with my colleagues. When your competitors are also your friends, life is better. And it is astonishing how often collaboration results.

February 04, 2010

My recent post on using videos for EDD marketing has continued to elicit conversation. Casey Horne, an attorney with Horne & Horne (they're still working on a website or I'd link to it!), wrote to express his agreement with Ian Henderson's remarks. Casey wrote:

"Peter Drucker made the point years ago that some people learn through their eyes, others through their ears, and damned be he who fails to note the difference.

At the time, it was clear he focused on printed text versus oral speech, so the current fixation on video would be a hybrid and an open question. I find them 80% 'ear' with very little 'eye' data transmission.

I am an 'eye' person. If I hear complex instructions, I have to take notes to 'translate' the information to brain language, where it can be processed and used. Otherwise the MEGO effect controls. (Sharon: for those who don't know, that's the "My Eyes Glaze Over" effect and I am a fellow sufferer)

I know 'ear' people who can hear something once and quote it without error . . . and who can internalize the information and process it to produce action - with successful results.

I have known a (very) few who are both. Not nearly as many as those who may think they are both.

Thanks for writing Casey. And let me added some stats I read some time back (don't ask me to source it because I haven't a clue, but I must have valued the source or I wouldn't have written this information down):

We remember 10% of what we read, 20% of what we hear, 30% of what we see and 50% of what we see and hear. I'll add the caveat that this was over a short term (two weeks) because we slowly forget things over time. Although my own experience is that we forget faster with each passing year. This accompanies my conviction that mountains also grow higher with each passing year, but that's another matter . . .

John and I teach a hands-on CLE called "Kick Our Tires" in which we help lawyers understand and actually "play" with the new high tech courtrooms here in Fairfax. I always the relate to attendees the thoughts of Judge Gerald Bruce Lee (E.D.VA) who says that lawyers who have a decent case and use a PowerPoint as part of their opening at trial are more likely to win in jury cases. I think that's a confirmation of the stats I quoted above. From the very first, you've told jurors orally and visually what you're going to prove and what's significant in the case. If you then do what you said you were going to do, jurors often stay with the initial mindset that you've provided.

Needless to say, woe betide the lawyer who promises to prove things and then fails to do so.

February 02, 2010

Ashley Sullivan, 17, was drunk the night she crashed her car into a brick pillar. Her 20 year old boyfriend was killed in the crash.

A month later, she went to Florida and posted a photo on her Facebook page entitled "Drunk in Florida."

The judge told her flatly that her conduct after the crash had earned her six months in jail along with five years probation, during which she may not drink. The N.Y. judge also refused to grant her youthful offender status.

Add this to a long list of drunk young folks that have managed to get themselves incarcerated by posting photos which make them look anything but remorseful.

Stupid to post, stupid to drink after being responsible for the maiming or killing of someone while drunk behind the wheel. Forrest Gump was right. "Stupid is as stupid does."

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